The Canadian Charter of Rights and Freedoms empowers the Supreme Court to interpret and uphold values entrenched in the Constitution by giving it the responsibility to review legislative and executive actions, and invalidate them in case of non-compliance. While scholars have noted the growing influence of the Court’s judicial power on policy outcomes, its supporters argue that a robust interpretation of rights protects citizens to be treated equally in order to participate in democratic politics; on the other hand, its critics suspect how judicial reviews could avoid interfering with the will of people, which is expressed through elected representatives in other branches of the government. Despite such disagreement, most scholars think the Charter creates new constitutional actors in the form of ethnic minorities, and therefore makes balancing between different interests especially difficult and controversial.
My paper picks up on this debate in the scholarly literature to argue that the Court often tends to place a greater emphasis on equality over liberty when interpreting the Charter, and some freedoms cannot be achieved without the government actively promotes them through direct intervention. To develop this argument, I examine how the changes in relationship between Canadian government and minority groups impose challenges in governing the country as a result of the Charter. In particular, I focus on cases involving religious and language minorities to illustrate how the Court attempts to solve the legal puzzle following secular and egalitarian principles.
References
Beaman, Lori G. 2012. “Is Religious Freedom Impossible in Canada?” Law, Culture and the Humanities 8(2): 266-84.
Grover, Sonja. 2006. “The right to minority language public school education as a function of the equality guarantee: a reanalysis of the Gosselin Supreme Court of Canada Charter case.” Education and the Law 18(4): 283-94.
Hiebert, Janet L. 2002. Charter Conflicts: What Is Parliament’s Role? Montreal & Kingston: McGill-Queen’s University Press.
Manfredi, Christopher P. 1994. “‘Appropriate and Just in the Circumstances’: Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms.” Canadian Journal of Political Science 27(3): 435-63.
Morton, F.L. and Rainer Knopff. 2000. The Charter Revolution and the Court Party. Peterborough: Broadview Press.
Smithey, Shannon Ishiyama. 2001. “Religious Freedom and Equality Concerns under the Canadian Charter of Rights and Freedoms.” Canadian Journal of Political Science 34(1): 85-107.
Weinrib, Lorraine Eisenstat. 2001. “The Activist Constitution.” Judicial Power and Canadian Democracy, ed. Paul Howe and Peter H. Russell. Montreal & Kingston: McGill-Queen’s University Press.
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